« ZurückWeiter »
state, attorney general, register, clerk of any court of record, sheriff, or collector, member of either house of congress, or person holding any office under the authority of the United States, or any lucrative office under the authority of this state (provided that appointments in the militia or justices of the peace shall not be considered lucrative offices), shall be eligible as a candidate for, or have a seat in, the general asseinbly."
The proper solution of the question presented to the committee involves a construction of the words “eligible to or have a seat in the general assembly," as used in the Constitution of 1851. The contestant insists that these words are synonymous with the corresponding clause in the above section of the Constitution of 1802, to wit, "eligible as a candidate for, or have a seat in, the general assembly."
This is the real point in issue. Under this latter section it has been repeatedly decided that a person holding an office “under the authority of the United States, or a lucrative office under the authority of this state,” at the time of being voted for as a candidate for member of the General Assembly, cannot, by subsequently resigning such office, become qualified to take his seat in the General Assembly. The reports of committees in both houses, however, as well as the votes taken on the question, show that this conclusion has been seldom if ever reached without a contest and division of opinion. The question, therefore, even under the Constitution of 1802, is not entirely free from doubt. In fact, an uncertainty seems to have existed in relation to this clause in said Constitution from the time it went into effect until it was replaced by the Constitution of 1851.
In the exhaustive brief furnished the committee by the contestant, he cites cases as late as 1849, in one of which (Brown vs. Edson) the issue involveu air xart parallel to the one now under consideration. The point is stated in the in ity report of the committee on Privileges and Elections in the following language: “The real question of issue between the majority and the minority of the committee is, does the fact, that Mr. Edson, holding the office of prosecuting attorney at the time of his election, render him ineligible as a candidate for and to holda seat in the general assembly ?" Appendix to House Journal, 1848–9, page 218.
In this unsatisfactory state of the decisions on the subject, the Constitutional Convention of 1851 met for the purpose of framing a new Constitution, and presumably to amend and make certain that which had been found to be defective, or ambiguous in the old. In doing, or attempting to do this, the Convention omitted the words “as a candidate for," in the corresponding section to the one which had given rise to so much uncertainty in the old Conttitution. The contestant claims this was done, because the words were tautological, but the contestee, on the other band, insists that the Convention intended thereby to make the prohibition apply only to qualification to hold a seat in the General Assembly, and thus finally settle the questions which had troubled the General Assembly for years.
This seems to be the only disputed points between the parties, as presented in their briefs.
The committee, after a through consideration of all the arguments urged by the contestant, is unable to agree with him, that these seemingly pertinent and important words were omited as meaningless by the Con. vention of 1851, especially in view of the fact that they had given rise to so many troublesome contests, under the old Constitution.
An examination of the character of other important charges incorporated into the Constitution of 1851, ought to aid very materially in determining the intention of the Convention in making the change in question.
By such examination it appears that changes and modifications have generally been introduced in the new Constitution with the idea of rendering it more definite and certain, and not to increase the number of ambiguities already existing To illustrate : By Soc. 8, Art. 3, of the old Constitution, judges are disqualified from holding “any other office of profit or trust under the authority of this State, or he United States ;" yet the Convention deemed it necesssary in the corresponding section (Sec. 14, Art. 4,) of the new Constftution to add to the above language the following words, to wit: “All votes for either of them, for any elective office, except a judicial office, under the authority of this State, given by the General Assembly, or the people, shall be void."
Here the Convention uses language which the people can understand. Its meaning is fixed and certain, and it is suceptible of but one interpretation. The contestant, however, would insist that all this is useless verbiage, and that the Convention might more aptly have expressed its meaning by simply using the term "ineligible," and without even adding the words “as a candidate for." He does not attempt to explain why this brief form of expression is used in one section and not in the other.
In his brief the following reason is given for this particular omission, to-wit:
"The words as 'a candidate for' were stricken out as surplusage, and meaningless, by the committee on rerigion, Judge Ranney, chairman, but the substance was not changed.”
If this be so, Judge Ranney and his revision committee must have neglected their duty, or entrusted to novices, the revision of other sections of the Constitution, notably the one above referred to in relation to the judiciary. The committee is unable to concur in contestant's belief that so eminent a jurist as Judge Ranney would make such a change without calling the attention of the Convention to it, but is willing to concede that the position taken by contestant is sustained by some very respectable authorities, and the meaning he gives to the term "ineligible” is not without support; yet the fact remains, that authors and law writers differ on the subject.
Recourse must, therefore, be had to judicial decisions.
The precise point, so far as the committee is advised, has never come before the Supreme Court of Ohio. In other States, the term "ineligible" has been heid to mean, “as well disqualification to hold an office, as disqualication to be elected to an office." State ex rel. Schuet v. Murry, 28 Wis., 99, Carson v. McPhertridge, 15 Ind., 327.
The committee is unanimous in the opinion, that the Convention of 1851 used the term in the former sense, and intended only to disqualify persons from holding certain other offices, while acting as members of the General Assembly.
The conclusion will, in the judgment of the committee, be found to be in harmony with a uniform current of decisions in both houses of the General Assembly, since the adoption of the present Constitution.
The only case cited by contestant under the constitution of 1851, is that of Lockheart v. Loveland, House Journal 1856, Index Appendix
p. 89. If it be true, as stated in contestant's brief, “that the precise question was fairly raised in the contest between Mr. Lockheart and Mr. Loveland," (and the commtttee agrees that it was,) then, as a precedent, it does not sustain the position of contestant in this case, as reference to the report of the committee will show that the committee was unanimous in favor of the sitting member, Mr Loveland, who, it was conceded, held the office of sheriff of Holmes county, Ohio, at the time of his election as a member of the General Assembly, and the House afterward concurred in the report. The committee is of opinion that the question was "fairly raised" in the above case of Lockheart v. Loveland, for the reason that under section 6 article 2 of the Constitution either house may of its own motion “inquire into the election returns and qualifications of its own members."
It is at least certain that if this case has any value as precedent, it sustains the views of the committee in the case under consideration.
So, also, if it be claimed that the case of Hon. Robert B. Dennis has any application here, then it is also, in the opinion of the committee, a precedent in harmony with the views already expressed. The facts in that case show that after the election and qualification of Mr. Dennis as a member of the Fifty-ninth General Assembly, and, while he held a seat in the same, to wit, July 19, 1870, he was appointed to a lucrative office under the authority of the United States, which office he continued to hold until December 1, following his appointment. In fact, he held said appointive office and "held a seat in " the General Assembly, at one and the same time; and yet, in the judgment of the committee of that case, unanimously given, he could, even at the date of inquiry into the facts, divest himself of the disability at pleasure, by a resignation of the appointive office. The language of the Constitution is "shall be eligible to or have a seat in," etc. If the definition of the word “ineligible" urged upon the committee by contestant be accepted, still it is difficult to see why, if a person ineligible to the office of representative by reason of his holding another office at the time of his election, nevertheless be in fact elected to the General Assembly, he may not, by resignation of the other office, before taking his seat in the General Assembly, as effectually remove the disability as a person who, the Constitution says, shall not have a seat in the General Assembly by reason of his holding another office, but nevertheless in fact is holding another office, and has a seat in the General Assembly at one and the same time, and yet he may at any time remove the disability by resignation of the other office, and continue to hold his seat in the General Assembly. The disablity, in fact, exists in the one case as much as in the other, and if so, a resignation should be as effective in the one case as in the other.
But if it be doubted whether these cases “fairly raised” the question involved in the case under consideration, and are for that reason not to be relied on as precedents, there can be no doubt, in the judgment of the committee, that the precise question was made in the case of Newman 0. Glover, the latter of whom held the office of Register in Bankruptcy for the Eleventh Congressional District of Ohio, under the authority of the United States, both prior to and at the time of his election to the General Assembly, and continued to hold said office of Register in Bankruptcy until December 30, 1869, at which time he resigned said office, and his resignation was accepted before he took his seat in the Fifty-ninth General Assembly. [House Journal, 1870, pages 159 and 165.] That the question was fairly made in this case, the journals of 1870 and 1871 clearly show, and yet the report of the committee in favor of Mr. Glover's right to hold his seat in the General Assembly was sustained by the House, as appears on page 133 of the journal of 1871. The committee gives due consideration to this case as a precedent, and no case having been found in which the question has been decided otherwise, it is, in the opinion of the committee, entitled to great weight.
The question already considered being the only ground of contest, and it being admitted that the contestee was fairly elected by an overwhelming majority, and the question being one of doubt even under the old Constitution, which was certainly more explicit than the present one and all the precedents under the new constitution being fairly in sup. port of the conclusion herein reached, the committee is unwilling to con. trovert the judgment of those who have in former General Assemblies had the question under consideration, and given an interpretation to the constitutional provision in controversy.
If the correctness of this conclusion be even doubtful, still such doubts, in the unanimous opinion of the committee, should be resolved in favor of the constitutional right of the people to be represented by the man of their choice, once freely and fairly made at the ballot-box.
No frivolous technicalities should be premitted to thwart the will of the people.
The committee therefore reports that the Hon. Moses H. Kirby is entitled to his seat in the Sixty-fourth General Assembly for the constitutional term of two years from the first day of January, 1880, and asks to be discharged from further consideration of the subject.
D. Ā. HOLLINGSWORTH,
REPORT OF THE COMMITTEE ON SOLDIERS AND SAILORS'
ORPHANS’ HOME AND SCHOOL FOR IMBECILE YOUTH.
The committee on Soldiers' and Sailors' Orphan's Home and School for Imbecile Youth, which was instructed under Senate Resolution No. 80 to investigate certain charges made in the public press, reflecting upon the conduct of the officers in charge of the Soldiers' and Sailors' Orphans' Home at Xenia, and to report its findings to the Senate, report:
That in pursuance of said resolution it has examined thirty-four witnesses, including the officers in charge of and a number of the employes of said institution, and that every person was called as a witness, who so far as the committee could learn, knew or had an opportunity of knowing anything about the matters charged. As the result of said investigation, the committee finds but one of the charges made to be true. We find that an abortion was procured on the matron in said institution named in said charges on or about December 26, 1880, but that no one connected with that institution was in any way responsible for the condition of the matron at the time she was employed at the institution, on or about August 15, 1880, she being pregnant at that time, and that her condition at the time of her employment in the institution was not known or suspected by any one. That prior to that time she was of good character, and came to the institution very highly recommended, and no blame attaches to any one in charge of said institution for her appointment as such matron. We find that the condition of said matron while in said institution, prior to said abortion, was known to no one connected with said institution, except a matron now discharged, who learned the same some time in November, 1880, and Dr. Brundage, the physician o that institution, who learned it on December 24, 1880. We find also that no one connected with said institution knew that an abortion had been procured on said matron prior to the day of her discharge from the institution, except said matron now discharged, and said physician, who knew it within a very short time after that same bad been procured, and nearly three weeks before she was discharged. The said physician did not inform any one of the officers in charge of the institution of the condition of said matron or that an abortion had been procured on her, until after said matron, now discharged, had informed the superintendent of the home, Major W. L. Shaw, of these facts. We find that said matron so informing was discharged from the institution on or about January 11, 1881, and has not been since employed therein; that said superintendent, as soon as he was informed of the facts above stated, discharged the matron on whom the abortion was performed from the institution, and she has not since been employed therein; and that said physi